Tag: Trustee Act
Section 38 of Ontario’s Trustee Act provides that an estate trustee may commence or maintain, on behalf of a Deceased individual, an action in tort that could otherwise have been commenced by that individual. As discussed in related blogs on this section, such actions are ordinarily subject to a stricter limitation period than that of other civil claims.
In typical civil claims, Ontario’s Limitations Act imports a two-year limitation period which begins to run as of the date the cause of action was discovered. The limitation period under the Trustee Act, however, begins to run as of the Deceased’s date of death and is not subject to this principle of discoverability, unless the Plaintiff can satisfy the Doctrine of Special Circumstances. The decision in Graham Estate v Southlake Regional Health Centre recently contextualized this Doctrine and, in so doing, suggests that the principle of discoverability will not always be dispensed with.
In May 2008, the Deceased in Graham Estate underwent a botched surgical procedure that ultimately gave rise to a claim in medical negligence. The Deceased subsequently died in February 2009, and a claim was commenced by the Deceased’s Estate in May 2010, well within the two-year limitation period under section 38(3).
As part of this initial claim, the Estate obtained disclosure of relevant medical records relating to the operation. In or about 2015, more than four years after the limitation period had expired, counsel for the Estate subsequently received an additional unprompted cache of records that had not been previously disclosed. This new set of records gave rise to a claim against a party who was not a party to the existing litigation.
In February 2017, the Estate subsequently brought a motion seeking to add the Proposed Defendant as a party to the litigation. At issue in this decision was whether the Estate was out of time as a result of the strict operation of section 38(3) of the Trustee Act. The Court ultimately held that the Estate ought to succeed on the basis of the Doctrine of Special Circumstances.
As the claim against the Proposed Defendant was, on its face, out of time, the Estate argued that the Doctrine of Special Circumstances ought to apply. This Doctrine is comprised of a two-step test to be satisfied by the Plaintiff:
- The Plaintiff must rebut the presumption of prejudice that would result to the party to be added; and
- The Plaintiff must satisfy the Court that special circumstances justify the addition of that party.
At the outset, the Court held that the loss of a limitation defence immediately gave rise to a presumption of prejudice in favour of the Proposed Defendant. However, the Estate identified a number of factors that operated to rebut the presumption of prejudice, notably:
- The claims to be made against the Proposed Defendant were identical to those already commenced against the existing Defendants;
- The action against the Proposed Defendant was tenable in law; and
- There would be no procedural unfairness to the Proposed Defendant if he were added as a party, as no trial date had been set and he would have sufficient time to prepare a defence.
The Court then considered whether there were any equitable special circumstances that merited the addition of the Proposed Defendant as a party. As above, the Court held that there were, but in so doing, in effect considered factors not unlike the discoverability principle.
Chiefly, the Court noted that the Proposed Defendant’s role in the circumstances giving rise to the initial negligence claim had not become apparent until the limitation period had already expired. The Court found that the Estate had made efforts to obtained the relevant records well within the limitation period, and that the records implicating the Proposed Defendant had erroneously been omitted. The Court held that this was not a case in which the Estate was “handicapped by its own inaction.”
While section 38(3) of the Trustee Act on its face imports a strict limitation period, the Graham Estate decision nonetheless suggests that the courts will consider discoverability, among other factors. That said, this analysis is only engaged if the presumption of prejudice is rebutted.
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Today on Hull on Estates, Paul Trudelle and Kira Domratchev discuss the decision of the Ontario Court of Appeal in Levesque v Crampton Estate, 2017 ONCA 455, which dealt with the question of whether a crossclaim against the Estate of Father Dale Crampton was time-barred by s. 38 (3) of the Trustee Act.
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Today on Hull on Estates, Ian M. Hull and Doreen So discuss the recent Court of Appeal decision in Levesque v. Crampton Estate, 2017 ONCA 455, and the two-year, from death, limitation in section 38 of the Trustee Act.
If an estate trustee is not fulfilling their duties and is not acting in the best interests of the estate, it is possible to commence an application for removal.
When seeking to remove an estate trustee in Ontario, anyone with a financial interest in an estate can apply to have an executor passed over or removed, pursuant to s. 37(3) of the Trustee Act. Rule 14.05(3)(c) of the Rules of Civil Procedure, allow an application to be commenced for the purpose of “the removal or replacement of one or more executors, administrators or trustees, or the fixing of their compensation.” The applicable principles for the removal of an executor have been established in Letterstedt v Boers (1884), 9 App Cas 271 (South Africa PC) and have been summarized in Johnston v Lanka Estate, 2010 ONSC 4124:
- The court will not lightly interfere with the testator’s choice of estate trustee;
- Clear evidence of necessity for removal is required;
- The court’s main consideration is the welfare of the beneficiaries; and
- The estate trustee’s acts or omissions must be of such a nature as to endanger the administration of the estate/trust.
A recent British Columbia Court of Appeal decision, Al-Sabah v Al-Sabah, 2016 BCCA 365, upheld the removal of an estate trustee of an estate on the basis that she did not comply with the notice provisions of the Wills, Estates and Succession Act, and was not acting in the best interests of the estate.
In this case, the deceased died in 2003, intestate, and left 15 beneficiaries, including his two sons, two wives, and seven daughters. One of his daughters was the appellant and the estate trustee of the estate. The respondents on the appeal comprised 79% of the beneficiaries to the estate.
Upon the death of Mr. Al-Sabah, estate litigation was commenced across several countries, as he had held property in many different locations. The appointment of the estate trustee by British Columbia was successful, however, the appellant had also applied to be the estate trustee of the estate in London, and had her position revoked, and she commenced at least 4 actions in Kuwait against other beneficiaries, all of which were unsuccessful.
In chambers, the estate trustee was removed, and appealed that ruling. On appeal, it was upheld that the estate trustee did not exercise reasonable diligence in providing notice to the other beneficiaries of her intention to apply for the position, and that she failed to disclose relevant information to the beneficiaries.
The British Columbia Wills, Estates and Succession Act section 121, and the British Columbia Supreme Court Rules establish the requirements for notice of the beneficiaries. It was established that the estate trustee did not provide notice to the proper addresses required by the rules, as the addresses to which she forwarded notices were almost all incorrect. The judge also noted that the application was made amidst “hotly contested” and “acrimonious” estate litigation, and that when she applied for her grant of administration, she did not disclose that there was significant litigation surrounding the estate in other countries.
If this case were to have taken place in Ontario, it is likely that the Ontario courts may have come to the same decision as the British Columbia court, in applying the principles as established in Letterstedt v Boers. The court would not have been interfering with the testator’s choice of estate trustee as he died intestate, and it is clear that the removal was required due to her dishonesty and her lack of consideration of the welfare of the beneficiaries, thereby endangering the administration of the estate.
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The Ontario Superior Court recently considered the application of section 38 of the Trustee Act in John C. Chaplin v. First Associates Investments Inc. et al and Abrahamovitz v Berens.
Section 38(1) of the Trustee Act states:
Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but if death results from such injuries no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.
In Bonaparte v. Canada (Attorney General), the Court held that in considering whether a wrong falls within the ambit of s38(1), “the focus is not upon the form of the action but whether the alleged wrong constitutes an injury to the person.” The courts have held that this section applies to claims in tort, contract, and breach of fiduciary duty.
In John C. Chaplin, an Estate commenced an action against an investment advisor for making speculative investments, which resulted in losses. In this case, the Court seems to expand the scope of s. 38(1) further, to include actions for purely economic loss, stating:
The property of the deceased, being her money, was allegedly destroyed in value due to the wrongful acts of Mr. Monaghan. Black’s Law Dictionary includes in the definition of “injury” the “violation of another’s legal right, for which the law provides a remedy; a wrong or injustice” and “any harm or damage”. That is broad enough to include the claims here for damages arising from the actions of Mr. Monaghan who was a registered investment advisor with First Associates.
The court also considered the limitation period in section 38(3) of the Trustee Act, which states:
An action under this section shall not be brought after the expiration of two years from the death of the deceased.
The Court held that this limitation period is strict and that the discoverability rule does not apply. This limitation period applies both to claims by and against the estate, under s. 38(2). Moreover, in Abrahamovitz v Berens the Court held that the section does not extend or toll a limitation period created by the Limitations Act, but simply passes the right to commence an action from the deceased to the personal representative if the cause of action arose before death.
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Section 37 of the Trustee Act provides the Ontario Superior Court of Justice with the power to remove and replace an Estate Trustee “upon any ground upon which the court may remove any other trustee.”
However, as we have previously blogged, the Court is generally not inclined to interfere with a testator’s wishes. In Chambers Estate v Chambers, 2013 ONCA 511, Justice Gillese confirmed that the removal of an Estate Trustee should only be granted on the clearest of evidence, with the welfare of the beneficiaries as the fundamental guide for the Court’s exercise of its discretion.
The Honourable Justice Fairburn’s recent decision in Ricci v Ricci Estate, 2016 ONSC 6614, reaffirms the high threshold that must be met before the Court will take the extraordinary step of removing an Estate Trustee.
In Ricci, the Deceased died leaving her husband (“Livio”) as the Estate Trustee of her Estate. The Deceased’s Will provided Livio with a life interest in her property, with their children as the residuary beneficiaries upon Livio’s death.
However, in 2015, Livio took personal possession of the home and obtained a new mortgage without notifying the residuary beneficiaries. Michael, one of the sons and the alternate Estate Trustee under the Deceased’s Will, brought an Application for Livio’s removal as Estate Trustee.
On the Application, Michael asserted that the transfer of title and the new mortgage resulted in a breach of Livio’s duties and obligations as Estate Trustee. Michael argued that Livio’s actions had put him in an untenable conflict of interest.
Given that the property was in Livio’s name, Michael also cited a letter from Livio’s lawyer that suggested that Livio would consider disinheriting Michael to demonstrate that his interest in the Deceased’s Estate was at risk.
Conversely, Livio argued that he had only acted to increase the value of the Estate by entering into a more favourable mortgage. It was Livio’s evidence that he had transferred title to the property into his name so that the mortgage on the property could be renegotiated on more favourable terms, allowing him to start paying down some of the principal amount of the mortgage. Livio also executed a declaration of trust after receiving enquiries from Michael’s counsel, confirming that he was holding the property in trust for his children in accordance with the Deceased’s Will.
Ultimately, Justice Fairburn held that while Livio should not have transferred the property into his personal name or remortgaged the property without notice to the beneficiaries, his actions were not “fatal” to his position as the Deceased’s Estate Trustee. Placing Livio’s actions in context, the Court found that the beneficiaries had benefited from the remortgaging of the property. The Court also held that the declaration of trust showed that Livio intended to abide by the Deceased’s testamentary intentions.
In the result, Michael’s Application was dismissed. Instead of ordering Livio’s removal, the Court ordered that the declaration of trust be amended and registered on title to the property.
Justice Fairburn’s decision once again reiterates the high bar for the removal and replacement of an Estate Trustee. The Court may be reluctant to exercise its discretion in the absence of clear evidence, even if there may have been a technical breach of the Estate Trustee’s duties.
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Umair Abdul Qadir
Section 38 of the Ontario Trustee Act sets out a two-year limitation period from the date of death for actions by or against executors and administrators. However, as illustrated by a recent decision of the Ontario Superior Court of Justice, the equitable doctrine of fraudulent concealment can operate to toll this statutory limitation period.
In Roulston v McKenny, 2016 ONSC 2377, the Estate Trustee of the Deceased’s Estate brought an Application for the directions of the Court as to whether an action against the Estate was statute-barred. The Deceased died on March 20, 2013, and the claim against the Estate was not commenced until September 18, 2015.
The Deceased and his former wife (the “Respondent”) had entered into a separation agreement that required the Deceased to maintain $150,000.00 in life insurance, with the Respondent as the designated beneficiary.
Shortly after the Deceased’s death in March 2013, the Estate Trustee discovered that the Deceased’s life insurance policies had lapsed due to non-payment. However, the Court found that the Estate Trustee initially suggested that the insurance had not lapsed, and then delayed bringing an application for the advice and direction of the Court on the issue until more than two years after the Deceased’s death. The Estate Trustee’s counsel did not advise the Respondent’s counsel of the lapse until September 2013.
In September 2015, less than two years after the Respondent was first advised that the insurance policies may have lapsed, the Respondent sued the Estate to recover the $150,000.00 debt under the separation agreement.
The Respondent argued that the doctrine of fraudulent concealment should apply to toll the limitation period. As set out in the Court of Appeal’s decision in Giroux Estate v Trillium Health Centre, the doctrine of fraudulent concealment operates to forbid a party in a special relationship with a party from using a limitation period for a fraudulent purpose.
In Giroux Estate, the Court of Appeal set out the three criteria to be met for the doctrine to be applied:
- the parties must be engaged in a relationship of a special nature;
- due to the special nature of the relationship, the defendant’s conduct is unconscionable; and
- the defendant conceals the plaintiff’s right of action.
In the present case, given that the insurer would only release information about the Deceased’s insurance policies to the Estate Trustee and the Estate Trustee had “exclusive possession” of the information, the Court concluded that the parties were in a special relationship. The Court also concluded that the Estate Trustee’s conduct was unconscionable, given the special relationship between the parties.
Finally, the Court held that the Estate Trustee’s failure to advise the Respondent of the lapse of the policies had the effect of concealing that the Respondent had a claim against the Estate.
In the result, the Court found that the doctrine of fraudulent concealment applied to toll the limitation period until September 2013, and the Respondent’s claim was thus not statute-barred.
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Umair Abdul Qadir
I blogged earlier this week about the availability for a trustee to bring an Application for the opinion, advice and direction of the court under section 60(1) of the Trustee Act, and, in so doing, potentially alleviate themselves from liability concerning the decision so long as they act in accordance with the court’s direction. But what should happen if, when confronted with a difficult decision, the trustee does not ask the court for direction, but rather should act of their own volition? If a beneficiary should later successfully argue that the trustee acted improperly in making such a decision, and committed a breach of trust, will the trustee always be liable for such a decision?
The Trustee Act is clear that just because a trustee commits a technical breach of trust, it does not necessarily follow that the trustee will be held liable for any corresponding damages. Section 35(1) of the Trustee Act provides:
“If in any proceeding affecting a trustee or trust property it appears to the court that a trustee, or that any person who may be held to be fiduciarily responsible as a trustee, is or may be personally liable for any breach of trust whenever the transaction alleged or found to be a breach of trust occurred, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust, and for omitting to obtain the directions of the court in the matter in which the trustee committed the breach, the court may relieve the trustee either wholly or partly from personal liability for the same.” [emphasis added]
As is made clear by section 35(1) of the Trustee Act, so long as the trustee acted “honestly and reasonably” in committing the breach of trust, the court may in its discretion relieve the trustee from liability concerning such a decision. The leading authority regarding what is to be considered “honestly and reasonably” is the British decision of Cocks v. Chapman,  2 Ch. 763, at 777, where the court states:
“It is very easy to be wise after the event; but in order to exercise a fair judgment with regard to the conduct of trustees at a particular time, we must place ourselves in the position they occupied at that time, and determine for ourselves what, having regard to the opinion prevalent at that time, would have been considered the prudent course for them to have adopted.” [emphasis added]
If the court is of the opinion that the opinion prevalent at the time would have considered the decision prudent, it may alleviate the trustee fr
om liability concerning such a decision in accordance with section 35(1) of the Trustee Act. If not, the trustee may continue to be liable for the decision.
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Being a trustee of a trust can be perilous, with trustees facing potential personal liability should they make the wrong decision. As a safeguard against such potential liability, when issues arise in the administration of a trust, trustees may consider commencing an Application for the opinion, advice or direction of the court in accordance with the Trustee Act. Section 60(1) of the Trustee Act provides:
“A trustee, guardian or personal representative may, without the institution of an action, apply to the Superior Court of Justice for the opinion, advice or direction of the court on any question respecting the management or administration of the trust property or the asserts of a ward or a testator or intestate.”
Should the court accept such an Application, and provide the trustees with directions regarding the issue, the trustees are insulated from liability as it relates to the beneficiaries regarding such an issue so long as they act in accordance with the directions of the court. This is made clear by section 60(2) of the Trustee Act, which provides:
“The trustee, guardian or personal representative acting upon the opinion, advice or direction given shall be deemed, so far as regards that person’s responsibility, to have discharged that person’s duty as such trustee, guardian or personal representative, in the subject-matter of the application, unless that person has been guilty of some fraud, wilful concealment or misrepresentation in obtaining such opinion, advice or direction.”
Notably, while section 60(1) of the Trustee Act allows trustees to direct a specific issue for the “opinion, advice or direction” of the court, the court has been clear that on such an Application the court will not exercise discretionary decisions on behalf of the trustees. Such a point was recently made clear by Justice Broad in Keller v. Wilson, where at paragraph 25 the court states:
“The fact that trustees are expressly permitted by the Trustee Act to apply for the opinion advice or direction of the Court does not authorize the court to exercise discretionary powers on behalf of trustees, thereby shifting responsibility from the trustees, on whom the settlor of the trust placed such responsibility, to the court. This is so even though subsection 60(2) of the Trustee Act provides a specific indemnification to trustees who act upon the opinion, advice or direction of the court.” [emphasis added]
Cases like Keller v. Wilson make it clear that on an Application for opinion, advice, or direction, the court will not exercise discretionary decisions on behalf of the trustee, with their jurisdiction to provide directions being limited to questions of a “legal” nature relating to the discharging of the trustees’ duties. To this effect, the court’s direction can be thought of the court advising whether the trustee “can” not “should” do a particular action. While the court will advise whether the trustee has the legal authority to do a particular action, they will not make such a discretionary decision on behalf of the trustee.
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In Ontario, it is trite law that an estate trustee of a testate estate derives his or her powers from the Will of the deceased. Accordingly, unlike an intestate estate, it is not always necessary for an estate trustee to obtain a Certificate of Appointment of Estate Trustee with a Will (“probate”) in order to administer an estate.
However, in certain matters it is necessary for an estate trustee to obtain probate before being able to represent the estate, regardless of whether there is a valid Will. The 2000 decision of Justice Haley in Carmichael Estate (re) succinctly sets out the three instances where probate is required:
- Third parties dealing with the executor may require probate in order to accept the authority of the Will. Justice Haley provides the example of a debtor who wishes to ensure that the proper person is being paid in order to satisfactorily discharge the debt.
- Proceedings where the executor represents the estate as plaintiff or as defendant. Here, Justice Haley notes that the Court will require probate in order to satisfy an evidentiary matter pursuant to section 49 of the Evidence Act.
- Where a foreign estate trustee intends to establish his rights in Ontario, letters probate must be resealed (referred to as ancillary letters probate).
In Re Carmichael Estate, the respondents sought to include a fourth category requiring probate – the removal of an executor under section 37(1) of the Trustee Act. The Court held, however, that an applicant is free to bring a removal application regardless of whether probate has been granted and whether the estate trustee has acted in the administration.
Re Carmichael Estate a decision well worth reading for all history buffs given Justice Haley’s excellent historical analysis of the English common law Courts relating to probate and estates from the 11th century onwards.